Understanding Criminal Cases

Lesser offenses are called misdemeanors. There are three types of misdemeanors, depending on the seriousness of the crime. These offenses are punishable by confinement in a local jail and/or payment of a fine.

Examples of the most serious misdemeanors, called gross misdemeanors, include second or subsequent DWI (driving while intoxicated) violations and sale of tobacco to children. Other misdemeanor offenses include disorderly conduct, prostitution, tampering with a motor vehicle, trespassing, littering, writing bad checks and making harassing phone calls. Petty misdemeanors are not punishable by imprisonment but only by a fine. Examples include possession of a small amount of marijuana and most traffic and parking violations.

Generally, criminal cases are initiated by the filing of a complaint based either on a police investigation or a citizen's accusation. A complaint is the document that sets forth a formal charge against the defendant. It is signed by the victim or the accuser. The person signing the complaint must show reason or probable cause to believe that the defendant committed the offense. Once a complaint has been filed, the court may issue either a warrant for the arrest of the person charged or a summons requiring the person charged to appear before the court at a specified time. A warrant of arrest authorizes any police officer to take the person named on the warrant into custody in order that the person may be brought before the court to answer the charges in the complaint.

After a defendant has been arrested or summoned to appear on a criminal charge, he/she must appear before the court. The first appearance is a hearing where the defendant is advised of his/her rights and the procedure that will be followed. If the defendant does not have an attorney at that time, he/she is given an opportunity to obtain one if they wish. If the defendant cannot afford to hire an attorney, the court will consider whether or not to appoint an attorney to represent the defendant based on the court's first determining the financial situation of the defendant. Though often referred to as an arraignment, a first appearance is a separate court event. A defendant charged with a felony may not enter a plea at the first appearance but he must do so at the arraignment. This first appearance always takes place in the magistrate court. In misdemeanor cases, the first appearance and arraignment are combined so that the magistrate judge proceeds to take the defendant's plea and sets the case for trial if necessary.

In felony cases, the defendant must determine if he/she desires a preliminary hearing. If the defendant requests a preliminary hearing, one is set within the time limits prescribed by law, however, a defendant may waive these time requirements if he/she desires.

A preliminary hearing in a felony case is conducted before a magistrate judge, at which time the prosecuting attorney presents what evidence he/she may have to show that there is probable cause (reason) to believe that a crime has been committed and that the defendant committed the crime. If the prosecutor convinces the judge with that information, the defendant is bound over, meaning the case is referred to the district court for further action. Should the prosecutor not make an adequate showing at the preliminary hearing, the magistrate judge may dismiss the case or the charge may be reduced to a less serious offense and the defendant is sentenced accordingly.

If a defendant is bound over to the district court on a felony charge, he/she then appears for arraignment before a district judge. At the arraignment in district court, the defendant is again advised of his/her rights and the procedures the court will follow from that time forward.

It is at this stage of the proceeding that the felony defendant may enter a plea. It is also the point that bond will be set for the defendant if it was not set at the probable cause hearing. If the defendant pleads not guilty, the court will set the case for trial.

If the defendant is found not guilty, he/she is released and the previously set bond is exonerated or returned to the defendant. If the defendant has pled guilty or is found guilty, the next step will be to order a persistence investigation. This is done in almost all felony cases and in a large number of serious misdemeanor matters.

A pre-sentence report is prepared by an investigator assigned to a case. It details important information about the defendant that will assist the judge in determining the sentence. A copy of the pre-sentence investigation is made available to the defendant and his/her attorney, as well as to the prosecutor. By Administrative Court Rule 32, pre-sentence reports are confidential and may not be disclosed to other parties or agencies except by court order upon a showing of legitimate interest in the rehabilitation of the defendant. The pre-sentence report contains detailed information about the defendant's background, social history, and other issues of a private nature to the defendant.

Once the court and the parties have received the pre-sentence report and have had an opportunity to review that report, a hearing is held in which the defendant is sentenced.

Kevin A. Hooks
Director of Investigations

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